Lakeland Police DUI Case Hits Trouble in Court

Lack of documentation means court problems for weekend incident.

Published: Thursday, October 31, 2013 at 11:04 p.m.

Last Modified: Thursday, October 31, 2013 at 11:04 p.m.

LAKELAND | Another Lakeland police DUI case hit trouble in court this week after an officer failed to abide by a judge's request for documentation, according to court records.

The incident caused State Attorney Jerry Hill to write another letter to LPD complaining about an officer. In this case, it involved Officer Michael Kellner's refusal Sunday to submit documentation called a probable-cause affidavit. The defendant, Derrick McGary, 38, was released from jail Monday because the document wasn't provided.

While the case can still be prosecuted, the lack of response meant McGary was released without any pretrial conditions, such as posting bail, pretrial supervision, restrictions on driving, curfew, random monitoring and restrictions on drinking alcohol and visiting bars, said Assistant State Attorney Brian Haas.

"These are all things, tools, that are used to protect the public and ensure that they come back to court like they are supposed to," Haas said.

Lakeland police spokesman Sgt. Gary Gross said prosecutors notified the department about the incident Wednesday and said LPD is reviewing how to handle the situation.

"At this time, the incident has been documented on an Employee Incident Report and has been forwarded to the Office of Professional Standards," Gross said. "Chief Womack will then review the EIR and make a decision on who will investigate the alleged incident, either the direct supervisor or an investigator from OPS."

Earlier this year, the State Attorney's Office declined to prosecute 45 cases handled by Officer David Edds, and Hill wrote a letter critical of LPD's handling of the cases and saying he would no longer use testimony from Edds.

Edds drew a lecture from a judge after he testified during a June 18 DUI trial that he had a driver sign an incomplete affidavit and then filled in the rest of the form later. He also made changes to another record that already had been notarized. A jury found the defendant in that case not guilty. Edds has since quit the force in lieu of being fired.

The most recent problem stems from an incident last weekend when Kellner arrested and charged McGary with driving under the influence, according to reports.

At the time, McGary's blood-alcohol level registered 0.136 and 0.134, according to records.

When McGary had his first court appearance Sunday, Circuit Judge James Yancey requested to see a probable-cause affidavit, which explains why the officer made the arrest and gives more detail than a citation.

Kellner had submitted only the citation.

"I'll hold him over until tomorrow," Yancey said, according to court transcripts. "We'll bring Mr. McGary ... back tomorrow for first appearance again because I don't have an affidavit up here to tell me what's going on, which, oh well it's probably because it's the Lakeland Police Department, but that's all right, all right we'll bring him back over tomorrow."

McNeal sent an email that day to Kellner requesting the additional documentation, records show.

Kellner's reply to McNeal on Sunday said LPD officers don't do, and have never done, probable-cause reports on DUIs unless the defendant refused a breath test or if their test results were below 0.08, the blood-alcohol level at which a person is considered legally drunk.

"The breath test itself is probable cause for the arrest," Kellner wrote to McNeal.

Kellner also sent email to his supervisor, Sgt. Chad Mumbauer, about 5 a.m. Monday, explaining his understanding of LPD's policy, and providing some commentary.

"This must be a new judge," Kellner wrote to his supervisor.

"Or it's someone confusing us with PCSO. I know they have to do (report) continuations on everything traffic or otherwise."

Mumbauer forwarded the email string to Assistant State Attorney Stacie Kaylor asking for guidance on the case and for future DUI cases.

"Everyone makes mistakes," Hill wrote to Mumbauer.

"Officer Kellner's actions in this case were not mistakes. His email back to my office and failure to do what the judge directed reflects an attitude. Officer Kellner responded in the way he did out of an unacceptable arrogance."

In his letter, Hill told Mumbauer that while he appreciated him following up with his office in an email, the solution to the situation was simple: "If a circuit judge asks for a probable-cause statement, you get it to him. I hope that your agency can make that clear to Officer Kellner."

Gross said Thursday a directive was immediately issued to all officers that if a DUI arrest is made, a probable-cause form must be completed and accompany the DUI citation and defendant to jail.

This wasn't McGary's first time in court.

"In 2011, Mr. McGary was prosecuted by my office and convicted of driving under the influence," Hill wrote in his letter to Mumbauer. "As you may be aware, Florida law provides for harsher penalties for subsequent DUIs."

Kellner, 45, has worked for the department on three different occasions, according to department records.

He was first hired in 1997 and worked until 2006.

He was rehired again in 2006 and quit again about a year later.

His latest employment stint with the department began in 2011.

He is paid about $42,000 a year.

[ Jeremy Maready can be reached at jeremy.maready@theledger.com or 863-802- 7592. ]

<p>LAKELAND | Another Lakeland police DUI case hit trouble in court this week after an officer failed to abide by a judge's request for documentation, according to court records.</p><p>The incident caused State Attorney Jerry Hill to write another letter to LPD complaining about an officer. In this case, it involved Officer Michael Kellner's refusal Sunday to submit documentation called a probable-cause affidavit. The defendant, Derrick McGary, 38, was released from jail Monday because the document wasn't provided.</p><p>While the case can still be prosecuted, the lack of response meant McGary was released without any pretrial conditions, such as posting bail, pretrial supervision, restrictions on driving, curfew, random monitoring and restrictions on drinking alcohol and visiting bars, said Assistant State Attorney Brian Haas. </p><p>"These are all things, tools, that are used to protect the public and ensure that they come back to court like they are supposed to," Haas said.</p><p>Lakeland police spokesman Sgt. Gary Gross said prosecutors notified the department about the incident Wednesday and said LPD is reviewing how to handle the situation.</p><p>"At this time, the incident has been documented on an Employee Incident Report and has been forwarded to the Office of Professional Standards," Gross said. "Chief Womack will then review the EIR and make a decision on who will investigate the alleged incident, either the direct supervisor or an investigator from OPS."</p><p>Earlier this year, the State Attorney's Office declined to prosecute 45 cases handled by Officer David Edds, and Hill wrote a letter critical of LPD's handling of the cases and saying he would no longer use testimony from Edds. </p><p>Edds drew a lecture from a judge after he testified during a June 18 DUI trial that he had a driver sign an incomplete affidavit and then filled in the rest of the form later. He also made changes to another record that already had been notarized. A jury found the defendant in that case not guilty. Edds has since quit the force in lieu of being fired.</p><p>The most recent problem stems from an incident last weekend when Kellner arrested and charged McGary with driving under the influence, according to reports.</p><p>At the time, McGary's blood-alcohol level registered 0.136 and 0.134, according to records.</p><p>When McGary had his first court appearance Sunday, Circuit Judge James Yancey requested to see a probable-cause affidavit, which explains why the officer made the arrest and gives more detail than a citation.</p><p>Kellner had submitted only the citation.</p><p>"I'll hold him over until tomorrow," Yancey said, according to court transcripts. "We'll bring Mr. McGary ... back tomorrow for first appearance again because I don't have an affidavit up here to tell me what's going on, which, oh well it's probably because it's the Lakeland Police Department, but that's all right, all right we'll bring him back over tomorrow."</p><p>The probable-cause affidavit isn't something always required by judges, Haas said.</p><p>"It depends on the facts and circumstances of the case and the preference of the judge."</p><p>Yancey told prosecutor Kyle McNeal that he had 24 hours to produce the necessary documentation, records show.</p><p>McNeal sent an email that day to Kellner requesting the additional documentation, records show.</p><p>Kellner's reply to McNeal on Sunday said LPD officers don't do, and have never done, probable-cause reports on DUIs unless the defendant refused a breath test or if their test results were below 0.08, the blood-alcohol level at which a person is considered legally drunk.</p><p>"The breath test itself is probable cause for the arrest," Kellner wrote to McNeal.</p><p>Kellner also sent email to his supervisor, Sgt. Chad Mumbauer, about 5 a.m. Monday, explaining his understanding of LPD's policy, and providing some commentary.</p><p>"This must be a new judge," Kellner wrote to his supervisor. </p><p>"Or it's someone confusing us with PCSO. I know they have to do (report) continuations on everything traffic or otherwise."</p><p>Mumbauer forwarded the email string to Assistant State Attorney Stacie Kaylor asking for guidance on the case and for future DUI cases.</p><p>"Everyone makes mistakes," Hill wrote to Mumbauer. </p><p>"Officer Kellner's actions in this case were not mistakes. His email back to my office and failure to do what the judge directed reflects an attitude. Officer Kellner responded in the way he did out of an unacceptable arrogance."</p><p>In his letter, Hill told Mumbauer that while he appreciated him following up with his office in an email, the solution to the situation was simple: "If a circuit judge asks for a probable-cause statement, you get it to him. I hope that your agency can make that clear to Officer Kellner."</p><p>Gross said Thursday a directive was immediately issued to all officers that if a DUI arrest is made, a probable-cause form must be completed and accompany the DUI citation and defendant to jail.</p><p>This wasn't McGary's first time in court.</p><p>"In 2011, Mr. McGary was prosecuted by my office and convicted of driving under the influence," Hill wrote in his letter to Mumbauer. "As you may be aware, Florida law provides for harsher penalties for subsequent DUIs."</p><p>Kellner, 45, has worked for the department on three different occasions, according to department records. </p><p>He was first hired in 1997 and worked until 2006. </p><p>He was rehired again in 2006 and quit again about a year later. </p><p>His latest employment stint with the department began in 2011. </p><p>He is paid about $42,000 a year.</p><p>[ Jeremy Maready can be reached at jeremy.maready@theledger.com or 863-802- 7592. ]</p>